Template confidentiality – contractor (i.f.o discloser)

DEFINITIONS

1. “Contractor” is ;
2. Contractor’s physical address is ;
3. “Discloser” is ;
4. Discloser’s physical address is ;
5. “the Parties” are the Contractor and Discloser;
6. “Contract” means [Enter details in general terms];
7. “Confidential Information” means confidential information generally relating to the Contract including, without limitation, all technical and design information, manufacturing techniques and specifications, processes, information concerning materials, design, technical and concept drawings, technical, marketing and sourcing information, business information generally, and other related materials of whatever description in which the Discloser has an interest in being kept confidential; and
8. “Commencement Date” means the earlier of: (i) the date of signature of this agreement by the Contractor; and (ii) the date on which the Contractor was appointed by the Discloser.

PREAMBLE

9. The Contractor has been, or is to be, appointed by the Discloser to provide services to the Discloser relating to the Contract.
10. The Discloser has in its possession certain Confidential Information that the Discloser may disclose to the Contractor, or that the Contractor may be exposed to in terms of the appointment.
11. The appointment of the Contractor is subject to the terms and conditions in this undertaking.

NON-DISCLOSURE AND USE

12. The Contractor undertakes to maintain the confidentiality of any Confidential Information to which the Contractor may gain or have gained access whether before or after the Commencement Date, and whether intentionally disclosed or inadvertently made available or exposed to the Contractor by the Discloser.
13. The Contractor may not divulge or permit to be divulged to any person any aspect of the Confidential Information, save as may be authorised in writing by the Discloser or as may have been contemplated by the Parties and is necessary for the purpose of the Contract, in which events such disclosure is subject to the provisions of the Disclosure to Personnel section.
14. The Contractor will not use or attempt to use the Confidential Information for any purpose other than for those purposes authorised in writing by the Discloser or as may have been contemplated by the parties and is necessary for the purpose of the Contract and, in any event, the Contractor will not use or attempt to use the Confidential Information in any manner that will cause or be likely to cause injury or loss to the Discloser.
15. The Contractor acknowledges that all right, title and interest in and to the Confidential Information vests in the Discloser and that the Contractor has no claim of any nature in and to the Confidential Information.
16. The Contractor will abide by all the rules and procedures of the Discloser designed to protect its Confidential Information and will take all reasonable steps to prevent the Confidential Information falling into the hands of an unauthorised third party.
17. Any documents and/or material including Confidential Information which comes into the possession of the Contractor or that may be generated by the Contractor in the performance of the Contract will (unless the Discloser provides its written consent to the contrary):
• be deemed to form part of the Confidential Information of the Discloser and be subject to the provisions of this undertaking;
• be deemed to be the property of the Discloser;
• not be copied, reproduced, published or circulated by the Contractor other than those purposes contemplated and necessary for the purpose of the Contract; and
• be surrendered to the Discloser on demand, and in any event on termination of the Contract.

DISCLOSURE TO PERSONNEL

18. Notwithstanding anything contained in the Non-Disclosure and Use section, the Contractor is entitled to disclose such aspects of the Confidential Information as may be relevant to one or more of its technically qualified employees or consultants, provided that the employee or consultant concerned:
• has a legitimate interest therein, and then only to the extent necessary for the purpose of the Contract; and
• is informed by the Contractor of the confidential nature of the Confidential Information and the obligations of confidentiality to which such disclosure are subject.
19. The Contractor shall notify the Discloser of the name of each person or entity to whom any Confidential Information has been disclosed in terms of this Disclosure to Personnel section as soon as practicable after such disclosure.
20. The Contractor will procure that any person to whom it discloses any Confidential Information accepts all related obligations that the Contractor has accepted in this undertaking as if such person had signed this undertaking.
21. The Contractor is responsible for any breach of confidentiality by any persons to whom the Contractor has disclosed Confidential Information in terms of this Disclosure to Personnel section, and indemnifies the Discloser in this regard.

EXCEPTIONS

22. The obligations set out in this undertaking do not apply to information which is in fact lawfully in the public domain at the Commencement Date or lawfully comes into the public domain after the Commencement Date otherwise than as a result of the conduct of the Contractor. The Contractor bears the onus of proving that this exception applies.

OBLIGATIONS ON TERMINATION OF THE CONTRACT

23. On termination of the Contract, the Contractor shall deliver to the Discloser all documents and/or material containing Confidential Information in its possession or control.

TERMINATION

24. Subject to the Exceptions section, the provisions of this undertaking will remain in force indefinitely.

RELIANCE ON INFORMATION

25. Neither the Discloser nor any other person making any representation, warranty or undertaking, express or implied, as to the accuracy, completeness or reasonableness of the Confidential Information will (save in the event of fraud) incur any liability for the use of, or reliance upon the Confidential Information by the Contractor or any other person.

INTERIM RELIEF

26. The Contractor acknowledges that a breach of any of the provisions contained herein would cause the Discloser to suffer loss which could not adequately be compensated for by damages and that the Discloser may, in addition to any other remedy or relief, enforce the performance of this undertaking by interim interdict or specific performance upon application to a court of competent jurisdiction without proof of actual or special damages and notwithstanding that in any particular case damages may readily be quantifiable, and the Contractor will not plead sufficiency of damages as a defence in the proceeding for such interim relief.

VARIATION

27. No amendment, alteration, addition, variation or consensual cancellation of this undertaking will be valid unless in writing and signed by the Parties.

WAIVER

28. No waiver of any of the terms or conditions of this agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same and any such waiver will be effective only in the specific instance and for the purpose given.
29. No failure or delay on the part of a Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

JURISDICTION

30. This agreement is governed by the law of .

SEVERABILITY

31. In the event that any of the provisions of this agreement are found to be invalid, unlawful, or unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

SIGNED AT___________________________THIS________DAY OF___________________20______




_______________________________________
For: Contractor
Duly authorised